Tuesday, June 30, 2009

Humana of Ohio - a health care insurance company - announced earlier this month that all new employees who smoke will be required to enter a smoking cessation program within 30 days or else be fired from the company. Similar requirements will not hold for Humana's employees who work in neighboring areas in Kentucky because that state has a law which prohibits employment discrimination against smokers. According to the company, the purpose of the program is to improve employee wellness in order to reduce health care costs and improve productivity.

According to an article in the Louisville Courier-Journal: "The Louisville-based insurer, which employs more than 1,200 people at its new operations in Cincinnati's Walnut Hills neighborhood and hundreds more at a distribution center in West Chester, said Monday, June 15, that it would give all new employees a questionnaire. If the workers use tobacco, they will have 31 days to enroll in a company program called Breathe. The company said the new requirements are part of a continuing commitment to employee wellness programs to shave costs and improve productivity. According to a Humana press release, its Breathe program is offered to all of its employees as part of the health initiatives. It is only mandatory for new Humana of Ohio employees. The company’s new regional headquarters and customer service center, located near downtown Cincinnati, was designed to foster employee health and wellness, Humana says. Features include walking tracks on three floors, an on-site fitness center, healthy food service, and well-lit stairwells to encourage exercise. Humana said in its release that it 'puts a strong emphasis on personal responsibility for health and wellness, which lead to improved quality of life and greater workplace productivity.'"

The Rest of the Story

Unfortunately, this new Humana policy isn't about saving health care costs and improving productivity at all: it's about controlling its employees' lifestyles and picking on smoking as one particular behavioral decision that cannot be tolerated.

If the true concern were saving health care costs, then Humana would be requiring smokers to actually quit smoking, or else be fired. Instead, the requirement is simply that employees agree to enter a smoking cessation program. It apparently doesn't matter if the program works or not. The important point is that the company has been able to express its disapproval of the smoking decision and to coerce the employee into entering such a program, whether the smoker actually quits or not.

In fact, the effectiveness of these types of smoking cessation programs is dismal and the majority of smoking employees who enter them will not quit. Thus, for most employees, the policy will not save any health care costs at all. It will not result in any change in the individual's health status; it will simply scold the employee for that health decision.

In contrast to the way the company is handling the decision to smoke, Humana is apparently not requiring obese or overweight employees to enroll in a weight loss program. It is apparently not requiring employees who are not physically active to log a certain number of hours each week on the treadmill. It is not mandating that workers who eat a crappy diet enroll in a nutrition education program.

All of these other employee wellness initiatives are voluntary. The only mandatory aspect of the company's wellness program is smoking cessation -- or to be more accurate, participation in a smoking cessation program which is, in the majority of cases, not going to be successful.

What's most interesting to me is why Humana would choose to handle smoking in a very different way than all other health behaviors. The company clearly is concerned about a range of behaviors. It has walking tracks, a fitness center, and well-lit stairwells to encourage exercise and a healthy food program to encourage improved nutrition.

However, all of these aspects of its wellness program are optional. Employees are not monitored to see if they do indeed go up and down the stairs. Their use of the fitness center is not mandatory. They can choose to use or not use the walking tracks. But the smoking cessation program: mandatory.

This raises the question of what else is going on here besides just a concern about employee health and wellness. The inconsistent treatment of smoking compared to other health-related behaviors suggests to me that smokers are being discriminated against for a reason other than a pure concern for health. I believe that a disapproval of smoking underlies this policy. But why a disapproval of smoking, but not of eating excessively or not exercising?

I think it's because it has become acceptable to scorn, punish, and discriminate against smokers. But to treat any of the other health-related behaviors in the same way would be immediately and strongly condemned because it is socially unacceptable.

In other words, intolerance of smokers has become socially acceptable in a way that intolerance of other health-related behavior decisions has not.

Humana of Ohio certainly has the right to implement this policy, but they should at least call it what it is: it's not a health and wellness program, it's an attempt to control the lifestyle of its employees.

Monday, June 29, 2009

The latest and saddest chapter of tobacco control history could easily have been prevented had only the anti-smoking and health groups applied a slight dose of common sense to their analysis of the FDA tobacco legislation.

As I've commented in the past week, this legislation is a huge hoax. It is a piece of legislation that is designed to make it look like Philip Morris, politicians, and the health groups are doing something about the smoking problem when in reality, the bill does nothing to challenge the status quo and contains provisions that are essentially window dressing: marginal changes that produce no meaningful or effective reductions in smoking or improvements in the safety of cigarettes and the protection of the public's health.

Even worse, it now gives cigarettes an FDA stamp of approval. Hundreds of thousands of Americans will continue to die from smoking-related disease, except now it will be with the blessing of the United States government and the health groups.

The reason for the failure of the bill to take meaningful action against tobacco is simple: it was crafted by Philip Morris. The nation's largest cigarette company was present at the negotiating table and had to give its approval to each provision in order for the bill to move forward.

So of course the bill is not going to meaningfully change the status quo or make any substantial reductions in youth smoking. If the bill were to substantially threaten cigarette sales and long-term profits by reducing the number of youth smokers, of course Philip Morris would not have supported this bill.

Senator Bob Bennett (R-UT) wrote a very nice piece in the Salt Lake Tribune in which he explains that his opposition to the FDA tobacco legislation was not that the bill did too much to reduce youth smoking, but that it did too little. Senator Bennett opposed the bill specifically because it contained "loopholes that benefit Big Tobacco" and because he believes "Philip Morris should stay out of the process of writing tobacco legislation."

Bennett writes: "Recently, Congress passed Sen. Ted Kennedy's Family Smoking Prevention and Tobacco Control Act and President Barack Obama signed it into law on Monday. At face value, this bill sounded like a good idea and it gained overwhelming support in both the House and Senate. However, its biggest support came from Big Tobacco, the very companies whose product the Food and Drug Administration will be asked to regulate. That fact gave me pause. When I looked at the fine print, I discovered that this bill increases one company's domination in the market, has little effect on reducing deaths and disease associated with tobacco, and places the authority of regulation of tobacco in the wrong hands. ... I'd still have voted for it if I had thought it would protect public health by focusing on prevention to reduce death and diseases associated with tobacco. However, reports indicate that the bill will achieve only modest results in improving public health. ... so let me be clear that my vote against the Kennedy bill does not mean that I do not support the intent of the bill. I opposed it because after reading the fine print, I was convinced we would do better if we told Philip Morris to stay out of the process of writing tobacco legislation."

The Rest of the Story

It is pitiful that the anti-smoking groups and health groups which supported this legislation are of the opinion that Philip Morris belongs in the business of crafting tobacco legislation and that inviting Philip Morris to the table where this legislation is hammered out is an appropriate way to formulate public health policy.

But it is truly mind-boggling that these groups would accept the premise that Philip Morris is a changed company and that somehow, it will now support legislation that will substantially reduce its profits by making a meaningful dent in youth smoking.

Frankly, Philip Morris would be irresponsible to its shareholders if it supported legislation that would significantly reduce youth smoking. That is the last thing in the world that Philip Morris wants if it is to remain in business with the kind of profits that it enjoys. Any executive who supported such a measure would be cast out of office immediately. And probably should be. After all, Philip Morris is not in the business of saving lives or protecting children. It's in the business of selling cigarettes.

I have long taught my public health students that the easiest way to evaluate a public health policy is to see if Philip Morris supports that policy or not. They have a lot more insight and a lot more research and experience available to them and a lot more is at stake for them than for us. Thus, they have to get it right. If they support a policy, you can be assured that it is not one that is going to reduce youth smoking and save lives to the extent that the health groups have boasted.

I have already presented a detailed analysis of the specific provisions of the legislation and a point-by-point accounting of the reasons why the bill will not reduce youth smoking, but will likely increase it. While this science-based argument did not work in changing the minds of the health groups, I am frankly surprised that the more common sense based argument did not sway these groups.

It is painfully obvious, even to the majority of the public I believe, that a bill supported by Philip Morris and crafted by the nation's largest cigarette company is not going to be one that is beneficial for the public's health.

To save lives, you either need to make cigarettes safer (which this bill does not do; and if anything it does the opposite by precluding safer cigarettes from the market) or you need to reduce smoking (which as Senator Bennett points out, this bill does essentially nothing to achieve and which is not going to occur in a Philip Morris-sponsored piece of legislation).

The rest of the story is that while the anti-smoking and health groups were unethical in their willingness to allow Philip Morris to craft legislation to determine the terms of their own regulation, these groups were stupid to fall for the notion that Philip Morris has suddenly changed and now supports measures that will substantially reduce its profits by decimating youth smoking.

The worst part of the story, however, is that these groups continue to lie about the nature of the legislation (that it was opposed by "slick tobacco lobbyists" and that it bans all cigarette flavorings). Timothy Carney, in his piece in the Washington Examiner last week, points out that Philip Morris lobbying far exceeds that of the next closest company and that the overwhelming amount of Big Tobacco lobbying regarding the FDA legislation was in favor of the bill.

As Carney writes: "President Barack Obama signed a bill Monday that the largest tobacco company in America had championed for years. Obama nevertheless claimed he had taken on Big Tobacco and won. ... But on Tuesday morning, the home page of Philip Morris, which controls a majority of the U.S. cigarette market, blared “Philip Morris Supports Federal Regulation of Tobacco.” Was Obama ignorant of the $40,000-a-day pro-regulation lobbying effort by the country’s biggest cigarette maker? Was Obama surprised by the applause Monday from Philip Morris’ parent company Altria, calling the bill “an important and historic achievement”? Altria’s support Monday didn’t reflect some conversion on the road to the Rose Garden. Altria stated it “has supported tough but reasonable federal regulation of tobacco products for more than eight years.” ...

"Obama’s rhetoric painted the opposite picture. Obama said in signing the bill, “despite the best efforts and good progress made by so many leaders and advocates with us today, the tobacco industry and its special interest lobbying have generally won the day up on the Hill. … Fifteen years later, their campaign has finally failed. … Today, change has come to Washington.” The kernel of truth in Obama’s claims is that the smaller cigarette makers — perceiving that this bill will protect and enhance Philip Morris’ dominance of the industry — have mostly opposed the legislation. But it’s misleading to claim you’re battling the “tobacco industry” when you’re siding with the industry’s 900-pound gorilla. Philip Morris sells more cigarettes than every other company combined — representing 50.4 percent of the U.S. market in the fourth quarter of 2008. There were more packs of Marlboros sold in the United States in 2008 than all R.J. Reynolds and Lorillard brands combined." ...

"Regarding that “special interest lobbying” Obama claimed to be battling, Philip Morris is the unrivaled industry king. Since 2003, the tobacco lobby has spent $155 million. Altria spent a majority of that — $83 million. Although the rest of the industry was lobbying against this bill, most of the lobbying money was on the pro-regulation side. Altria retained 16 outside lobbying firms at the start of 2009 and has added four more since then, three of which were lobbying for this bill. Altria is also the leading campaign contributor in the industry. In 2008, Altria gave 66 percent more to politicians than did runner-up R.J. Reynolds."

"“When I ran for president,” Obama said Monday as he signed the Philip Morris-championed bill, “I did so because I believed that despite the power of the status quo and the influence of special interests, it was possible for us to bring change to Washington.” ... it’s hard to square this rhetoric with his signing this bill. ... Obama may represent “change,” but — in this case at least — not the sort you can believe in."

It is dishonest of the health groups to claim that they have taken on Big Tobacco and its slick lobbyists and won. What they've done is sat down with the biggest and slickest of the lobbyists and allowed them to write the legislation.

To then tell the American people that you've fought these lobbyists and won is dishonest and unethical. We deserve a lot better than this from the leading national health organizations in tobacco control. But we're not going to get it. So far, not a single one of these groups has corrected its dishonest communications to the public.

It's quite clear: lying is not acceptable for Big Tobacco. But it is acceptable for tobacco control organizations. As long as you're working "for the children" and not against them, you can lie all you want.

Of course, this means that Philip Morris is now working "for the children." It's only appropriate that we now allow them to start lying again since they're now on our side.

Friday, June 26, 2009

Moving now at a pace of a lie a day, the American Cancer Society sent out a communication to its constituents implying that the FDA tobacco legislation was enacted because the voices of slick tobacco lobbyists were ignored.

The communication states: "It wasn't easy, but Congress and the President are standing up to Big Tobacco with an exceptional new law that makes it harder for tobacco companies to push their product. It's a monumental victory in our fight against cancer. As it turns out, there's one thing more powerful than slick cigarette lobbyists -- the voices of real people from all across the country fighting for change. Please take a moment to thank Congress and President Obama for enacting the Family Smoking Prevention and Tobacco Control Act."

The Rest of the Story

This communication clearly implies that slick tobacco lobbyists were fighting the FDA tobacco legislation. It suggests uniform opposition by Big Tobacco to the FDA bill and an effort by the tobacco lobbyists to kill the bill.

As we know, the truth is that Philip Morris - the largest company within Big Tobacco and the company with the overwhelmingly highest amount of lobbying expenditures in Congress - supported the bill and lobbied for its passage. Thus, the "slick cigarette lobbyists" from Philip Morris were promoting the bill and any Congressperson who voted for this legislation was supporting, not opposing, the interests of these "slick cigarette lobbyists."

Timothy Carney picked up on this type of act of deception in his Washington Examinercolumn on Wednesday, when he wrote that: "it’s misleading to claim you’re battling the “tobacco industry” when you’re siding with the industry’s 900-pound gorilla."

What the American Cancer Society is claiming here is more than just deceptive, in my opinion. It's not merely that the ACS is claiming that they were fighting Big Tobacco. They are making a specific claim that the "slick cigarette lobbyists" were opposing the bill and that it was the public's expression of support for the bill which overcame the work of these lobbyists.

I would opine that this is outright false. The largest chunk of Big Tobacco lobbyists and Big Tobacco lobbying money went into supporting this legislation. If anything, the legislation passed because of the work of "slick tobacco lobbyists."

And no, I do not believe for a minute that the power of the smaller companies' lobbyists could outweigh the impact of Philip Morris' lobbyists given the companies market dominance, Congressional influence, and dominance in terms of campaign contributions and lobbying expenditures.

Let me also just add that the slickest lobbyists involved with this bill were not from the tobacco companies, but from the health groups. It was those lobbyists who were able to sell a bill of goods to the Congress and convince legislators that this legislation was a strong public health measure that would save lives by mandating safer cigarettes, eliminating cigarette flavorings, eliminating cigarette advertising directed at kids, and reducing youth smoking.

The rest of the story is that the rhetoric of the leading anti-smoking organizations - including the Campaign for Tobacco-Free Kids, American Cancer Society, American Heart Association, and American Lung Association - is really no better than that of the tobacco companies. Both have lied to, and deceived the public.

And frankly, a lie is a lie. Just because the lie is coming from a "good guy" doesn't make it any more excusable. It's still a lie. It's still unethical. It's still unprofessional. And it's still inappropriate.

And in some ways, it's even worse coming from public health groups, because they are bound by an ethical code of conduct.

These health groups are destroying not only the public health practice of tobacco control and the federal framework for tobacco control practice in the United States, but they are also destroying the entire ethical integrity of the national tobacco control movement.

If you take the time to re-read the posts I've written during this week, I think you'll see the extent to which the behavior of these organizations is unethical and inappropriate and the extent of the damage that these groups are doing to the practice of tobacco control and the protection of the public's health.

Thursday, June 25, 2009

The anti-smoking and health groups which promoted the FDA tobacco legislation based the bulk of their argument in support of this bill on their assertion that FDA regulation of tobacco products would make cigarettes safer by virtue of the FDA requiring the reduction or elimination of certain toxic and carcinogenic chemicals in cigarettes or tobacco smoke.

For example, the Campaign for Tobacco-Free Kids boasts that the new FDA tobacco legislation will "empower the FDA to require changes in tobacco products, such as the removal or reduction of harmful ingredients or the reduction of nicotine levels."

Today I reveal, however, that these very same groups recently attacked the tobacco companies for making exactly the same argument. At that time, these groups told the public that this very argument was fraudulent.

In a special report entitled "Big Tobacco's Guinea Pigs: How an Unregulated Industry Experiments on America's Kids and Consumers," the Campaign for Tobacco-Free Kids, American Cancer Society, American Heart Association, and American Lung Association attacked the cigarette companies for marketing new products with reduced levels of, or elimination of, a number of the carcinogens in tobacco smoke. The health groups claimed that the tobacco companies were fraudulently lying and that there was no evidence that having fewer carcinogens translates into being a safer cigarette.

The report laments that: "Over the past several years, a number of new tobacco products have been introduced to consumers with unproven claims of reduced risk. These products have included cigarettes like Omni and Advance, or tobacco lozenges like Stonewall and Ariva. These products are only the beginning of a series of new products being unveiled by the tobacco companies in an effort to address the health concerns of current tobacco users and to provide an alternative product to individuals seriously considering quitting tobacco use altogether."

"Omni was produced and marketed by Vector Tobacco, Ltd, with the statement, “Omni has significantly reduced those carcinogens that are the major causes of lung cancer in smokers. Compared to any other cigarette currently on the market, Omni delivers less carcinogens to the smoker. While Omni has not been proven to reduce the health risks of smoking, Omni’s reduced carcinogen levels are a logical and important first step. If you smoke, Omni is clearly the best alternative.” The magazine ad claims, “Introducing the first cigarette to significantly reduce carcinogenic PAH’s, nitrosamines, and catechols, which are major causes of lung cancer in smokers.” There has been no evidence supporting any of Vector’s claims for Omni."

So what the health groups are saying here is that the tobacco companies are deceiving the American public by claiming that there is any connection between the reduction of carcinogens or toxins in a tobacco product and the safety of that product. This would be the only grounds for these health groups to attack Vector for stating in its ads that these cigarettes reduce levels of various toxins and carcinogens. If the health groups believed, at the time, that reductions of the levels or number of carcinogens and toxins in tobacco smoke was connected in some way to reduced health risks, then there would be no valid compliant against Vector for advertising the elimination of various toxins and carcinogens.

Now, however, the very same health groups are making exactly the same argument for which they attacked Vector: that the FDA can mandate a safer product by reducing or eliminating toxins and carcinogens in tobacco smoke. In other words, these groups are asserting that there is a connection between the levels and number of these toxins and carcinogens and the health risks for smokers.

The Rest of the Story

As the health groups should know based on abundant scientific evidence, there is no reason to believe that the reduction of certain toxins and constituents in tobacco smoke translates into a safer cigarette. A number of products which made such claims have been tested and no evidence has yet been produced to suggest that they are any safer. If anything, products which have documented lower yields of carcinogens have been found to pose a much greater risk of lung cancer among smokers. In other words, lower yield products are believed to be more dangerous, not less dangerous, for smokers. Clearly, we cannot assume that lower levels of carcinogens and toxins means a safer cigarette.

This blows the health groups' main argument in support of the FDA legislation right out of the water.

That would be fine, and we could merely conclude that the health groups were guilty of making a fallacious argument, were it not for the fact that those same health groups attacked cigarette companies for making that very argument.

In other words, the Campaign for Tobacco-Free Kids, ACS, AHA, and ALA are two-faced, double-sided, smoke-blowing hypocrites.

When Big Tobacco says fewer carcinogens means a safer cigarette, these groups tell the public that the companies are full of crap, and they take them to court and try to convict them as being guilty of lies, deceit, and fraud.

But when the health groups then make the very same argument - that fewer carcinogens and toxins will mean a safer cigarette - they apparently now suddenly believe that argument to be true.

Perhaps these health groups should come out with a new special report entitled: "Big Government's Guinea Pigs: How the Federal Government Experiments on America's Kids and Consumers."

If a governor of South Carolina who opposed same sex marriage on the grounds that a marriage should be between one man and one woman hadn't just been found gallivanting around in Argentina with a mistress, I would have said that these health groups were guilty of the most hypocritical action of the day. But I still think they come in a close second.

Wednesday, June 24, 2009

Product is a Bold, Full-Flavored Menthol Cigarette Directed at Young African Americans

The anti-smoking groups which supported the FDA tobacco legislation are living in a fantasy land, completely isolated from the real world of Big Tobacco politics, wheeling and dealing, and marketing, and no where is that more evident than the twin events of yesterday.

On the one hand, the American Cancer Society lied to the public, boasting that "Our nation's children – potential first-time smokers – will no longer be seduced by flavored tobacco products, including candy- and fruit-flavored cigarettes, which will be banned." Other health groups deceived the public in a similar fashion, telling us that candy-flavored cigarettes will be no more, but failing to mention that menthol flavoring is exempt. Even President Obama got into the act, boasting that candy and fruit flavorings will be banned, but conveniently hiding the fact that menthol flavorings are exempt.

So we were led to believe by the health groups that the days of cigarette companies using flavorings to entice our children into smoking are over.

At the same time that the health groups were busy patting themselves on the back in the Rose Garden for getting rid of flavored cigarettes that nobody smokes, Philip Morris was announcing the introduction of a new flavored cigarette -- perfectly legal and acceptable under the new law -- designed specifically to entice and addict young people, especially African Americans: Marlboro Blend No. 54.

Apparently, we were lied to by the health groups. If cigarette flavorings, including candy flavorings like menthol, are banned, then why is Philip Morris introducing a new menthol-flavored cigarette which is perfectly legal under the new legislation?

The answer is simple: the bill does not ban all flavors and not even all candy flavors. It exempts menthol, which is actually a common flavoring used in candy. Haven't you ever tried Airwaves cherry menthol candy? Have you not tried Kanro's Super Menthol candy? How about Honees Menthol Honey candy?

Well, the good news is that the honey in Honees menthol honey candy is banned from cigarettes; the bad news is that the menthol flavoring in Honees menthol honey candy is not.

Of course, the other part of the bad news is that no one is smoking honey cigarettes, while literally millions of Americans, including many youths, are smoking menthol cigarettes.

So I guess we didn't quite get rid of all candy-flavored cigarettes, did we?

And so while the health groups were busy telling an outright lie to the American public -- that cigarette flavorings and candy flavorings were banned -- Philip Morris was busy making plans for the enticement of the next generation of smokers through the use of a wonderfully attractive candy flavoring: menthol.

And there seems to be little doubt who Philip Morris is targeting with this product. Do you think the number 54 for this new Marlboro menthol blend is just a coincidence? Was it chosen by a random number generator?

Or is it possible that the number 54 has a special meaning, particularly to an African American population that may be largely familiar with urban slang, in which "54" is often used to refer to "a very hot girl with a really fine ass." (Those are not my words, I'm quoting directly from the urban slang dictionary). Other uses of "54" in urban slang include "a leet counter-strike invite club, for leet cs players" and "a term used to emphasize legal legitimacy."

Although the leading anti-smoking groups which promoted the FDA legislation would have us believe that the battle for youth and young adult market share is the banana market, the pineapple market, the cherry market, and the chocolate market, anyone living in reality rather than political and propaganda fantasy land knows that the true battle for youth and young adult market share is in the menthol market.

While the flavors banned by the FDA legislation make up perhaps 0.1% of cigarettes smoked by youths at the most, menthol cigarettes make up about 28% of the overall domestic cigarette market. The percentage is even higher among African American youths, where menthol cigarettes have about an 80% market share.

Maybe if African American kids start to smoke and we are at least protecting white kids, it is a public health victory; but where I come from, public health is about social justice and the health groups should be ashamed of themselves for supporting a bill that sells out the health of African American children for the profits of Big Tobacco, and then lying about it to try to hide that fact from the public.

If exempting menthol was necessary to retain Philip Morris' support for the legislation and keep the back room deal alive, then so be it. But don't stand in front of the American people and lie about it. Don't hide the fact that menthol was exempted as a political compromise. Don't lie to us and tell us that all flavorings are banned by the bill. Don't lie to use and tell us that all candy flavorings are banned by the bill.

Just stand up like a man or woman and tell us that you made a political compromise for the sole purpose of retaining Philip Morris' support.

Lying is supposed to be a technique used by the tobacco companies, not by us in public health. Apparently, that's no longer the case.

The rest of the story is that the bill's provisions for the FDA regulation of cigarettes are essentially window dressing. They are designed to allow the health groups to claim that they beat Big Tobacco, fire up their constituents, and obtain an infusion of donations. But the truth is that back in the real world, the substance of the legislation is missing. The law does almost nothing to actually protect our nation's children from addiction.

The saddest part of the story is this: now we need something to protect us from the lies being told by our own anti-smoking and health organizations.

Tuesday, June 23, 2009

I think the New England Cable News did a fine job of presenting a balanced and evidence-based report on the FDA tobacco legislation -- perhaps the most accurate coverage of the bill's enactment that I have seen.

Telling the Truth Would Have Required Admitting that the Bill is a Public Scam Which Does Little to Protect Children from Cigarettes But Lots to Protect Cigarette Sales

In a communication sent to the American Cancer Society's (ACS) network of advocates throughout the nation (including myself) and posted on the Society's web site, the ACS has lied about the effects of the FDA tobacco legislation passed last week by the U.S. House and Senate and signed into law Monday by President Obama.

According to the American Cancer Society's statement: "Our nation's children – potential first-time smokers – will no longer be seduced by flavored tobacco products, including candy- and fruit-flavored cigarettes, which will be banned."

The American Cancer Society is thus claiming that the FDA tobacco legislation bans all flavored tobacco products that might seduce children.

The Rest of the Story

If the American Cancer Society had read the actual text of the legislation or read any of hundreds of newspaper articles about the bill published in the past month alone, it would have easily found out that the bill does not ban all flavored tobacco cigarettes that seduce young smokers. The bill specifically exempts menthol from its ban on cigarette flavorings.

The key section of the bill about which the ACS is lying is section 907(a)(1)(A), which reads: "Beginning 3 months after the date of enactment of the Family Smoking Prevention and Tobacco Control Act, a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke."

Thus, either the American Cancer Society is somehow unaware that the bill exempts menthol or the ACS is lying to the public.

The former possibility can be ruled out because the ACS itself acknowledged in an earlier communication that the bill exempts menthol: "Some of the most highly visible impacts of the legislation would allow the FDA to: ... Ban all cigarette flavorings other than menthol, that is a characterizing flavor of the product...".

The American Cancer Society is also well aware that menthol is a cigarette flavoring whose primary purpose is to help addict youths by making cigarette smoke less harsh. The ACS itself, in a special report on the topic, stated that cigarette companies use menthol flavoring to: "Numb throat so the smoker does not feel as much throat irritation."

In support of this assertion, the ACS cites a tobacco industry document which argues that a flavoring (such as menthol) which makes cigarette smoke less harsh will help entice youth smokers. According to the ACS report: "The Teague document details a number of product features that make smoking more tolerable for beginning and learning smokers. For example, it discusses methods of reducing harshness, making the flavor bland since new smokers don’t like the taste of the smoke, and improving the “mouth feel” by reducing negatives like hotness anddryness."

In fact, the ACS report goes into tremendous detail about how the tobacco companies are using menthol to entice young African Americans to smoke (whether you agree with this conclusion or not, my point is that the ACS has certainly concluded and argued to the public that menthol is used to entice young smokers):

"The tobacco companies’ success in using menthol cigarettes to target African American kids is exemplified by the disproportionate number of young blacks who smoke menthol cigarettes. Not only does menthol numb the throat to allow deeper inhaling, the companies know menthol is attractive to their African American targets: “Young blacks have found their thing, and it’s menthol in general and Kool in particular.” It is hardly surprising then that 80 percent of 12- to 17-year-old black smokers choose Newport, the leading menthol brand, compared to just 16 percent of young white smokers. Again, these product design decisions can have a terrible impact on health. Menthol cigarettes have higher carbon monoxide concentrations than non-menthol cigarettes and may be associated with a greater absorption of nicotine. Moreover, research indicates that mentholated cigarettes may increase the risk of both lung and bronchial cancer by promoting lung permeability and diffusability of smoke particles. African Americans are more likely to develop and die from cancer than persons of any other racial or ethnic group. Lung cancer is the second most common cancer in both African American men and women and it kills more African Americans than any other type of cancer."

So the ACS is aware that the bill exempts menthol and has also argued previously that menthol flavoring is used in order to entice young smokers by making the smoke less harsh and in particular, by enticing African American youths who are attracted by the menthol flavor.

Therefore, I am saddened but forced to conclude that the American Cancer Society is lying to its constituents and the public in its communication stating that the FDA legislation bans all cigarette flavorings and thus ends the enticement of youths by these flavorings.

I should say that I am a long-time American Cancer Society supporter, volunteer, donor, and fund raiser and thus it greatly saddens me to see the ACS lie to the public like this.

But the reason for this lie is also clear. If the ACS were honest with the public, it would have to admit that the bill is a public scam which does little to protect children from addiction to cigarettes but lots to protect cigarette sales. Most notably, the bill bans all the flavorings that are not used very often (or at all), such as banana, pineapple, cherry, chocolate, and cherry, but exempts the one flavoring (menthol) which the ACS itself admits is used to entice huge numbers of young smokers, including a disproportionate number of African Americans. The ACS itself tells us that Newport - a menthol-flavored brand - is smoked by 80% of African American teenagers.

It's interesting that when it was trying to get this bill passed, the ACS had no problem featuring the problems of tobacco use in the African American community, but now that the legislation has been enacted, the ACS is now pretending that the African American community doesn't exist and that the enticement and seduction of African American youth smokers by menthol-flavored brands is not a problem.

After all, our nation's youths will no longer be seduced by flavored cigarettes. I guess African American youths are not considered a part of our national community of youths by the ACS. (Obviously, I'm being sarcastic here but my point is that first, the ACS is telling a pretty significant lie and second, that there is a notable tinge of institutional racial discrimination in the ACS' statements and actions).

Clearly, the ACS is afraid to tell the public the truth - that while the bill bans all the flavorings in cigarette brands which are rarely used by youths - it exempts menthol, which is the chief flavoring present in the brands favored by 80% of African American youths.

Let me just note that there is no scientific evidence that cherry, pineapple, and banana are playing any significant role in the enticement of youths to smoke. But there is abundant evidence (presented by the ACS itself) that menthol flavoring plays a critical role in the enticement of literally millions of smokers. When was the last time you saw a group of kids standing around smoking a banana-flavored cigarette? But you see groups of kids standing around smoking Newports all the time.

Telling the public the truth - that the bill exempts menthol - would be an embarrassing admission for the ACS, because it would reveal that the bill is a scam, which allows health groups and politicians to boast about how they are fighting Big Tobacco but which actually fails to confront the key problems which are leading to youth addiction to cigarettes (namely, the menthol flavoring and the nicotine).

Which brings us to the other element of massive deception in the American Cancer Society's communication: the web page tells us that by enacting this law, Congress is standing up to Big Tobacco. It states: "It's not easy to stand up to an enemy like Big Tobacco, but that's what Congress did and what President Obama will do next week."

But the truth is that the largest company within Big Tobacco - Philip Morris - was supporting the legislation!

Thus, it is massively deceptive to suggest that those voting for the legislation were standing up to Big Tobacco. They were actually supporting Philip Morris and helping the company do its bidding in Congress. While we can debate whether the bill was constructive or destructive in spite of or because of Philip Morris' support, it is very clearly not the truth that supporters of this legislation were standing up to Big Tobacco. Big Tobacco was actually split on the legislation, with the smaller companies opposing the bill and the largest company vigorously supporting it.

On the same day that the American Cancer Society declared that the seduction of young people by flavored cigarettes has come to an end due to the FDA legislation, Philip Morris announced that it was introducing a "richer, bolder" flavored cigarette that it hopes will compete with Lorillard's Newport and R.J. Reynolds' Camel Crush. And what is the flavoring in this richer, bolder flavored product which is expected to compete for a significant part of the market and to extend the penetration and market dominance of Marlboro? Is it cherry, chocolate, strawberry, pineapple, or banana? Is it mint, vanilla, coconut, cinnamon, or orange?

No -- it is ....

.... you guessed it...

Menthol.

According to a Bloomberg News article: "The cigarette, called Marlboro Blend No. 54, has a “richer, bolder” flavor than Philip Morris USA’s regular Marlboro menthol and Marlboro Smooth menthol cigarettes... . Retailers and distributors began receiving shipments on June 17, according to an information sheet distributed to wholesalers and confirmed today by Bill Phelps, another spokesman for Richmond, Virginia-based Altria. It’s the first new Marlboro menthol cigarette since 2007. Tobacco companies are pursuing menthol sales, which account for a growing share of the shrinking cigarette market. Reynolds, the second-largest U.S. tobacco company after Altria, has introduced products such as Camel Crush, a cigarette that contains a menthol capsule in the filter that provides flavoring when compressed. “If Altria wants to obtain more market share, it has to expand where the consumer has shown a preference,” Thomas Russo, who manages $2.5 billion of assets at Gardner Russo & Gardner, said in a telephone interview. Menthol is “the only territory where Altria can probably hope to gain share from other brands.” ... The company won’t discuss how it creates different flavors and it won’t comment on how the new cigarette compares with rivals’ menthol offerings, Mathe said. Philip Morris USA trails Lorillard in the menthol category and is using promotions to increase initial deliveries of Marlboro Blend No. 54."

The rest of the story is that the American Cancer Society has lied to its constituents and to the American public, telling us that the FDA tobacco legislation bans all flavored tobacco products that entice youths when the truth is that the bill exempts menthol, which the ACS itself has stated is a cigarette flavoring which is used to seduce youths, especially African American youths.

The days of our nation's children being seduced by flavored cigarettes has not ended, as claimed by the ACS. With the introduction of Marlboro Blend No. 54, those days are just beginning.

The only difference is that now, these menthol brands have the blessing of the health groups and of our federal government.

It's difficult to believe that this dishonest communication by the ACS was simply a mistake, since previous communications from the ACS did mention that menthol was exempt. Given the publicity that issue has received in recent weeks, I find it very difficult to believe that this wasn't a deliberate act of deception on the part of the ACS to make the bill sound better than it is and to hide the fact that the legislation fails to address the very issue which the ACS stated was so critical in its special report. Telling the truth would have forced the ACS to admit that the bill was largely a political show - window dressing - and that its propaganda is covering up the fact that the bill protects, rather than reduces, sales of the very products which are most responsible for addicting millions of our nation's youths.

Monday, June 22, 2009

In today's column by Jacob Sullum in Reason Online magazine's Hit & Run blog, Sullum comments on the public relations bonanza achieved by Philip Morris through its massive achievement of convincing the anti-smoking groups to stand shoulder-to-shoulder with it in promoting the FDA tobacco legislation, which President Obama signed into law earlier this afternoon. Sullum jokingly (but not really) refers to Philip Morris as the new hero of the anti-smoking movement.

Playing up to that role, Philip Morris has issued a statement in which it boasts about its concern for health issues and its commitment to high standards. Its executive vice president writes that: "Altria and Philip Morris USA have supported federal regulation of tobacco products by the Food and Drug Administration for nearly a decade -- and with good reason. Fundamentally, we cannot ignore the health issues associated with tobacco use and their implications for consumers and society as a whole. ... We believe that a comprehensive regulatory framework, implemented thoughtfully, can provide significant benefits to tobacco consumers. These benefits include establishing a common set of high standards for all tobacco manufacturers and importers doing business in the U.S., providing a framework for the evaluation of tobacco products that are potentially less harmful than conventional cigarettes, and creating clear principles for accurate and scientifically grounded communication about tobacco products to consumers."

The Rest of the Story

Ironically, it is the Campaign for Tobacco-Free Kids and the other anti-smoking groups which supported this legislation that made Philip Morris a hero of the anti-smoking movement. And, as I revealed earlier today, Dr. David Kessler even went so far as to heap praise upon Philip Morris.

By agreeing to negotiate with Philip Morris, by reaching a deal with Philip Morris, and by forming an alliance with Philip Morris to push forward legislation that Philip Morris helped craft to regulate its own products in its own preferred way, the anti-smoking groups have legitimized this tobacco company and made it a legitimate public health entity. Yes, Philip Morris is - thanks to its friends at the Campaign for Tobacco-Free Kids - a hero in the anti-smoking movement.

The U.S. Food and Drug Administration and the Centers for Disease Control and Prevention are warning consumers not to eat any varieties of prepackaged Nestle Toll House refrigerated cookie dough due to the risk of contamination with E. coli O157:H7 (a bacterium that causes food borne illness).

The FDA advises that if consumers have any prepackaged, refrigerated Nestle Toll House cookie dough products in their home that they throw them away. Cooking the dough is not recommended because consumers might get the bacteria on their hands and on other cooking surfaces.

The U.S. Food and Drug Administration is assuring consumers today that there is no cause for alarm over any varieties of prepackaged cigarettes manufactured by the largest tobacco companies, despite the confirmation that these products contain more than 10,000 chemicals, including at least 60 known carcinogens and that they are causing more than 400,000 deaths each year in the United States alone.

The FDA is not taking any of the actions that it usually takes against food and drugs when they have been confirmed to cause death, including any of the following:

1. The FDA is not recalling the product.2. The FDA is not pulling the product off the market.3. The FDA is not restricting the places where the product can be sold.4. The FDA is not requiring the removal of the toxic chemicals and carcinogens from the product.

The FDA advises that if consumers have any prepackaged, Philip Morris, R.J. Reynolds or Lorillard products in their home that they not throw them away. The FDA is prepared to take action if there is any adulteration or unexpected contamination that makes cigarettes unacceptably dangerous. But at the current level of danger, there is no need to take further action.

The FDA is also working hard to ensure that new tobacco products introduced into the market have been proven to be safe. But the FDA says there is no need to apply those high standards to the current products which are killing hundreds of thousands of smokers each year. "We don't care if smokers are dying from current products," stated an FDA spokesperson who declined to be named. "We just don't want them dying from new products."At the same time that the FDA is failing to take action against conventional cigarettes with their more than 10,000 chemicals and 60 carcinogens plus nicotine, the FDA has pulled from the market several varieties of electronic cigarettes which deliver just nicotine without the other 10,000 chemicals and 60 carcinogens.

According to an FDA spokesperson: "We are acting with an abundance of caution. We have no idea what the health effects of inhaling just nicotine is in the absence of the 10,000 other chemicals and the carcinogens. With conventional cigarettes, at least we know what's going to happen. At least 400,000 people will die. We feel comfortable because we know the consequences. But with electronic cigarettes, we have literally no idea."

Health groups applauded the FDA's decision to issue a warning about electronic cigarettes and take that product off the market while keeping conventional cigarettes on the market with no further restriction on the age of sale, places where they can be purchased, or required removal of the toxic chemicals. The Campaign for Flavor-Free But Menthol-Full Kids stated: "At least with conventional cigarettes, we know what we're dealing with. We know we're going to have upwards of 400,000 deaths. But with electronic cigarettes, there is no absolute proof that they are safer. There is no assurance that removing the more than 10,000 chemicals and 60 carcinogens from tobacco smoke and just leaving the nicotine is going to lead to any improvement in health of the users of these products. We advise smokers not to switch to electronic cigarettes until there is clear proof, through long-term studies, that these products are safer. Please, stick with the conventional cigarettes. We can't tolerate the even slight chance of harm from this new product. We have to act from an abundance of caution."

This Confirms that Alliance Between Public Health and Big Tobacco Led to FDA Tobacco Legislation

Kessler Admits that Legislation is Basically a Hoax in that There is No Intention or Expectation that FDA Regulation Will Lead to a Safer Product

Kessler's Praise of Philip Morris is Devastating Blow to Public Health and Huge Victory for Philip Morris

According to an article in the New York Times, former FDA head and current anti-smoking advocate Dr. David Kessler sent a message to recently retired Philip Morris senior vice president Steven Parrish congratulating him on the passage of the FDA tobacco legislation and praising him for his instrumental role in making the bill's enactment possible. Kessler wrote to Parrish: "Congratulations to you — you were key."

On NPR's Weekend Edition, Dr. Kessler publicly heaped praise upon Philip Morris and emphasized that public health and the largest element of Big Tobacco now see eye-to-eye and stand shoulder-to-shoulder in their desire to protect the health of the nation's children and adults.

Kessler told NPR: "I applaud Mr. Parrish's efforts. ... I think he deserves a lot of credit in making this shift. We agree on the legislation and I think that's what's important."

Interestingly, despite the bill's primary stated intention of making cigarettes safer by giving FDA the authority to regulate the design and consitituents of the product, Kessler admitted that it was neither the intention nor the expectation of the bill's supporters that the bill actually achieve this purpose. He readily admitted that there is no scientific way for the FDA to make the product safer -- it's not even possible, he said:

"I'm not sure that scientifically we're smart enough to know how to do that or that's possible when you're burning a tobacco leaf or you're inhaling all these chemicals that are very reinforcing."

According to the New York Times article, Philip Morris was "critical in making cigarette regulation come to pass." The article also made it clear that thanks to the Campaign for Tobacco-Free Kids' overwhelming zeal to get some bill passed, Philip Morris was given a seat at the negotiating table and played a role in crafting the bill as the specific provisions were hashed out: "For sure, it [the Campaign for Tobacco-Free Kids' willingness to negotiate with Philip Morris] meant that Altria would have a seat at the table as the bill was being hashed out."

The Rest of the Story

Can you imagine? A chief public health and anti-smoking advocate is publicly praising Philip Morris for its support of public health!

While this shows that I was correct in my prediction that passage of this legislation would bring immense public relations benefits for Philip Morris, my opinion had been based on a belief that the company would create its own PR. I never imagined that public health advocates would create that public relations for Philip Morris by heaping praise upon the company for supporting public health.

This is truly a dream-come-true for Philip Morris. It now stands shoulder-to-shoulder with the public health community in the public light, and health advocates are making that happen. From what Dr. Kessler told the public, you would think that Philip Morris is now an equal partner in the movement to protect the public from the harms of tobacco. They are to be praised for their support of public health and they are now part of an alliance that sees eye-to-eye on federal tobacco policy.

Philip Morris could not possibly have even dreamed about such a public relations bonanza!

Dr. Stanton Glantz - a long-time tobacco control researcher and advocate - argued last week that the bill is a deal between the Campaign for Tobacco-Free Kids and Philip Morris and that one of the most damaging aspects of the legislation is that it legitimizes the tobacco industry, undermining years of public health progress: "'Basically, the public health people cut a deal with Philip Morris.' ... Glantz argues that the legislation legitimizes the tobacco industry at a time when 'legitimacy was being lost.'"

Dr. Kessler's remarks were incredibly revealing not only because he confirmed the alliance between public health and the largest company within Big Tobacco and the role of this alliance in making the FDA legislation possible, but also because he essentially confirmed that the bill is a huge hoax.

Dr. Kessler openly admitted that he has no expectation that the FDA will be able to make cigarettes safer. He said that it may not even be possible for the FDA to make cigarettes safer.

Well if that's the case, then the FDA is going to be approving cigarettes that are going to continue killing 400,000 or more people per year. Thus, FDA regulation is not going to make the product safer. All it will do, according to Kessler himself, is to allow the tobacco companies to continue to kill 400,000 people a year, except now with the government's official approval.

In other words, there are still going to be 400,000 deaths a year from cigarettes, and the bill's supporters know it, but they are instead telling the American people that the bill is going to save millions of lives by making cigarettes safer because FDA can take certain toxins out. But there is no expectation that is even possible, according to Kessler.

The end result is that cigarettes will continue to kill hundreds of thousands of Americans each year, except now they will be killing us with the blessing of the federal government and the public health groups. As a MarketWatch article predicts, FDA regulation will "make Big Tobacco even bigger."

The FDA tobacco legislation is a hoax because the politicians and health groups supporting the legislation have been telling the public that under this bill, the FDA will make cigarettes safer by removing certain of the toxic ingredients from the product. Now we find out from Kessler himself that there is no expectation that cigarettes will be made safer and that he doesn't even believe it is possible that removing certain ingredients will make cigarettes safer.

It truly is a hoax. And a hoax of massive proportions, I would add.

Just look at what supporters of the legislation are telling the American people. Senator Christopher Dodd (D-CT) boasted that because of this legislation, cigarette manufacturers will "be forced to stop using some of the most dangerous ingredients." As if that makes any difference. There are more than 10,000 chemicals in cigarettes and there is no evidence that removing "some" of the most dangerous ones will result in a safer product. But this scientific fact did not stop Senator Dodd from pulling the wool over the eyes of the public and contributing to the public hoax.

Even worse, look at what Senator Kennedy told the American public. He boasted that the legislation will "help addicted smokers quit" and that it will "require manufacturers to make tobacco products less toxic and less addictive for those who continue to use them." But the legislation does nothing to help addicted smokers quit. There is no support of smoking cessation programs. There is no money for smoking quitlines or any inteventions that will help smokers quit. There are no funds for campaigns to motivate smokers to quit. In fact, the only relevant power the bill gives the FDA is to reduce nicotine levels in cigarettes. However, we know from the scientific evidence that this will just result in smokers smoking more not less, as they need to compensate to maintain a constant dose of nicotine.

As John Jonik points out in a letter to the editor in the Seattle Times, Senator Kennedy's false promise is merely a continuation of the tobacco industry's fradulent statements about the benefits of low-nicotine cigarettes. In fact, Senator Kennedy's claim is probably worse because while the tobacco companies merely implied that "light" cigarettes might be less addictive, Kennedy is clearly asserting that low-nicotine yield products will be less addictive. Why is it that the tobacco companies were found guilty of fraud for making the same statement (in an even less assertive way) that Kennedy is now making?

Senator Kennedy's assertion that the bill will require manufactureres to make tobacco products less toxic is also false - another hoax. As Dr. Kessler admitted, there is no expectation that FDA regulation of certain of the ingredients in tobacco will be able to make cigarettes safer. Senator Kennedy, too, is pulling the wool over the eyes of the American public.

Another important implication of this story is that it confirms, based on reliable inside sources, that the Campaign for Tobacco-Free Kids has lied to its constituents and the public about the true role of Philip Morris in these negotiations. The Campaign has led us to believe that Philip Morris played little to no role in crafting the legislation and that its support for the legislation was essentially a coincidence -- they just happened to support the legislation that happened to come out of Waxman and Kennedy's offices.

Now we have quite reliable confirmation from inside sources that Philip Morris indeed played a critical role in the process. Philip Morris had a seat at the negotiating table. Philip Morris' support was deemed critical to the bill's passage. Philip Morris was involved in the crafting of the legislation as it was hashed out, and the companies' acceptance of the specific provisions of the bill was apparently viewed as essential to the bill's success.

In other words, the legislation represents a secret back-room deal between the Campaign for Tobacco-Free Kids ("representing" the public health community) and Philip Morris.

This is absolutely not the story that the Campaign for Tobacco-Free Kids has been telling, and it is obviously not what the Campaign wanted us to find out.

There can be no more denials by the Campaign and the other health groups. It is eminently clear what happened. It was the support of Philip Morris for the legislation that was the critical factor that made this bill possible. And therefore, Waxman and Kennedy deemed that the provisions in the bill would have to be approved by Philip Morris first, to make sure that the company would still support the legislation. That was why Philip Morris was invited to the table! There would have been no other reason to invite Philip Morris to the table unless Kennedy and Waxman needed a gauge as to how Philip Morris would treat the various provisions in the bill. Could Philip Morris live with these provisions or not? That -- and not the extent of protection of the public's health -- was the key factor that determined the final look of the legislation.

And alas, this is why it is nonsensical for Kessler to praise Philip Morris. The opportunity to be governed by a regulatory framework that you help to design is a dream-come-true for any corporation. It is not some sort of sacrifice that Philip Morris made because it has the health of the public as its concern.

Regulation does not equate to a loss of sales and profits. Regulation does not translate into reduced consumption of a product. What regulate actually means is "to permit." You are permitting the product to be sold, with some restrictions. The key thing is not whether the product is regulated, but how it is regulated and the extent of restrictions placed on the regulator. In this case, Philip Morris' seat at the table ensured that those restrictions would be heavy and that the regulation would never substantially endanger actual tobacco sales or profits.

Other companies would just dream of being given the opportunity to write the law that would govern their own regulation. In some cases, that has occurred, and where it has, it has led to the inability of regulators to properly protect the public's health. In this case, the fox was not only guarding the henhouse, the fox was allowed to write the regulations concerning the guarding of the henhouse.

Late last week, Dr. Stanton Glantz criticized the legislation specifically because it allows the fox to guard the henhouse. As Glantz pointed out, "The bill creates a 12-member advisory board through which all regulations will flow. Tobacco industry representatives will hold three nonvoting seats. 'Putting three guys on this committee would be a little bit like putting three mobsters on the Department of Justice committee on organized crime,' Glantz said, echoing the sentiment of other strong tobacco-control advocates."

This represents an unprecedented special protection for Big Tobacco (rather than ending special protections for Big Tobacco, as the Campaign for Tobacco-Free Kids claims in its propaganda).

Can you imagine if Merck had been allowed to sit on the FDA panel that was considering whether or not to take Vioxx off the market? Can you imagine if Pfizer were allowed to sit at the FDA table as it considers whether Chantix is causing severe adverse effects and whether special warnings or stronger actions - such as removal from the market- are required?

The rest of the story is that the FDA tobacco legislation is a successful hoax played on the American people by an alliance of health groups, politicians, and the nation's largest tobacco company. It was largely crafted by Philip Morris. It was a Congressionally-mediated deal struck between the Campaign for Tobacco-Free Kids and Philip Morris. The support of Philip Morris was deemed critical and Waxman, Kennedy, and the Campaign allowed Philip Morris to have a seat at the table because its approval of the details of the legislation was essential: otherwise, the company's support for the legislation would not be ensured. The result is a bill that contains numerous provisions that tie FDA's hands, give unprecedented special protections to Big Tobacco, and create a package that allows politicians and health groups to tell the public that they are really doing something to make cigarettes safer and to cut smoking rates when the truth is that they are aware that the bill will not make cigarettes safer and its provisions do not allow FDA to take the actions that would be necessary to substantially cut smoking rates.

The ultimate, and most ironic, truth is that in heaping praise upon Philip Morris, Dr. Kessler is acting as a great friend to Big Tobacco, and not as an anti-tobacco advocate as we have come to know him. He has single-handedly given Philip Morris the legitimacy and positive public image as a socially responsible and health-concerned corporation that it so deeply craves. He has undermined years of public health efforts to portray the tobacco companies in the negative light that they deserve for their long history of actions that have undermined the public's health.

But it's not all Dr. Kessler's fault. The Campaign for Tobacco-Free Kids really made this all possible, and essentially set up Dr. Kessler for this grave mistake, by agreeing to the secret negotiations with Philip Morris in the first place, without inclusion or representation of anyone else in the public health community who might have had a broader and more enlightened viewpoint.

Friday, June 19, 2009

Three more newspaper columns have exposed that the FDA tobacco legislation is actually a public scam in which politicians and health groups pat themselves on the back for taking on Big Tobacco when in reality, they have granted unprecedented special protections to the industry and failed to take the meaningful action that would actually make a dent in cigarette smoking rates.

While it is reassuring to see that the public is finally being made aware of the truth behind this legislation, it is unfortunate that this education comes after the legislation has already been enacted and it is too late for Congress and the health groups to re-think the damage they have done. But that's what happens when the leading organization (the Campaign for Tobacco-Free Kids) behind the bill's idea of discussion and inclusion is holding a conference call to allow itself to spread the propaganda under the guise of "answering questions" about the bill.

1. Philadelphia Inquirer Editorial

An editorial in the Philadelphia Inquirer stated that the FDA legislation was "a pact with the devil." It opined that the institutionalization of nicotine into cigarettes was a huge victory for Big Tobacco and that the FDA seal of approval will give the companies a public relations bonanza, allowing them to use attractive slogans such as "I'd walk a mile for an FDA-approved Camel."

The editorial states: "As Congress and President Obama move closer toward bringing tobacco products under federal oversight for the first time, they have to wonder if they're also making a pact with the devil. ... By agreeing to support federal regulation, tobacco giant Philip Morris U.S.A. assured that addictive nicotine would never be banned - a huge victory. Beyond that, however, the industry stands to gain an implicit stamp of approval by marketing its products under the watchful gaze of the FDA, whose usual mission is to assure that food and medicines are "safe and effective." It's not too far-fetched to imagine the ad campaigns: I'd walk a mile for an FDA-approved Camel."

2. Congress Examiner Column

A column by Igor Derysh in the Congress Examiner called the FDA legislation a "cheap political ploy" that allows politicians to tell the American public that they did something about the problem when they actually did nothing to actually make a difference in smoking, other than perhaps get rid of the banana-flavored cigarettes that are such a pervasive problem. Noting that the bill gets rid of all the flavorings that are not used but exempts the one flavoring (menthol) that is actually used to addict thousands of young people, Derysh concludes: "Protecting the public, my ass."

Derysh writes: "Earning cheap political points by going after easy targets has always been high on Congress' agenda. Respecting the American public has not. And so, when the recent tobacco regulation bill passed overwhelmingly in Congress it was both a cheap political ploy and another example of Congress disregarding the possible intelligence of the American people. The bill itself transferred regulation of the tobacco industry to the Food and Drug Administration (a government agency that is run by the same people that it regulates), strengthens warning labels, demands that tobacco companies disclose their ingredients, and bans flavored cigarettes. All flavored cigarettes except for menthol cigarettes. Menthol cigarettes of course have a considerably higher amount of harmful chemicals than others do and are targeted towards the black community just like guns. Protecting the public, my ass."

"The passage of the Tobacco Control Act is just another attack on the intelligence of the American individual. We do not need to be told that cigarettes are bad for you, we are bombarded with that message all day long. What we need is a Congress that accomplishes something worthwhile or just stays the hell home instead of celebrating cheap victories in which they banned banana flavored cigarettes."

3. Op-Ed in New York Post

George Will's column in the New York Post similarly opines that the FDA legislation is just another example of politicians patting themselves on the back when they have actually strengthened the position of Philip Morris, rather than taken meaningful action to protect the public's health.

Will writes: "Politicians have extraordinary shoulder joints that enable them to pat themselves on the back. Last week the president, a master of that calisthenic, performed it in the Rose Garden. His subject was the bill by which Congress authorized the Food and Drug Administration to regulate tobacco. The president called this "a bill that truly defines change in Washington" and "changes the way Washington works and who Washington works for." Our leaders are often wrong but rarely so precisely wrong." ... the bill is a crystalline example of Washington business as usual -- the protection of the strong. The bill was supported by America's biggest tobacco company ... Although commercial speech doesn't receive full First Amendment protection, Congress shouldn't be allowed to effectively prohibit truthful communication about a legal product. Philip Morris, however, can live -- indeed, can flourish -- with the new restrictions on the marketing measures by which less powerful companies might threaten its dominance. ... Government policy regarding tobacco, as regarding so much else, is contradictory and unlovely. ... Ironies abound. The February expansion of the State Children's Health Insurance Program is supposed to be financed by higher tobacco taxes, so this health care depends on an ample, renewable supply of smokers. State governments, increasingly addicted to tobacco-tax revenues, face delicate price calculations: They want to raise their regressive tobacco taxes (smokers are disproportionately low income and poorly educated) to just below where smokers are driven to quit. Governments can't loot tobacco companies that don't flourish."

Thursday, June 18, 2009

An article published Monday in Lawyers USA reveals that the FDA tobacco legislation will have a devastating effect on litigation against the tobacco industry because it will all but remove the prospect of punitive damages in these cases.

According to the article: "A bill that will give the Food and Drug Administration the authority to regulate tobacco products could make it harder for plaintiffs to obtain punitive and equitable remedies in tobacco cases. ... 'I’m sure companies will try to wrap themselves with the cloak … of being regulated by the FDA, and given that fact, punitive damages might be minimized,' said Edward Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston." ...

"If the FDA establishes more stringent rules for tobacco companies governing the marketing, warning labels and even the contents of tobacco products, it could become more difficult for plaintiffs to punish tobacco companies for practices that are allowed under such a tightened regulatory environment, lawyers said. In a statement after the bill passed the Senate, Altria Group, the parent company of Philip Morris, said that the new law will “establish a regulatory structure and standards for the manufacturing and marketing of tobacco products” - a hint that once the FDA sets these standards, it will argue that tobacco companies can’t be punished as long as they adhere to them. As a result, it might be harder for plaintiffs to obtain punitive damages in tobacco cases. The new law could also make it tougher for litigants to force tobacco companies to change their practices. 'Efforts by state attorneys general to try to further enforce the master settlement agreement or to take up regulatory action to try to get a court to crack down on particular practices in the industry will be affected, if the particular practice is already covered by the FDA regulations,' Sweda said."

The Rest of the Story

This story reveals yet another reason why the FDA tobacco legislation is a victory for Big Tobacco and a dream come true for Philip Morris. By virtue of FDA regulatory authority over tobacco products, the cigarette companies will be able to effectively argue that there is no further need for punitive damages, since the FDA can now regulate tobacco advertising, production, design, constituents, ingredient disclosure, etc. And the very low prospect for punitive damages will severely limit the pool of lawyers willing to take on these cases. Most importantly, it will eliminate the potential for any seriously damaging class action lawsuits, like Engle and Broin, which resulted in a huge verdict and a huge settlement, respectively, specifically because of the possibility for large punitive damage awards.

For this reason, the legislation effectively ends the threat of major financial damage from litigation for the industry. Thus, it gives Big Tobacco the gift of virtual immunity.

True, the industry may still need to pay out some individual smokers in terms of compensatory damages. However, this is pocket change for the industry and the slow stream of these cases poses no serious threat. Moreover, the industry is now able to use its vast resources to exhaust the resources of individual plaintiffs. We will see a return to the days when the tobacco industry almost never lost a case.

For all intents and purposes, the FDA tobacco legislation has ended the use of litigation as an effective tool for public health change in tobacco control. This is a devastating loss for the tobacco control movement, since it was in the courtroom that the movement realized some of the most important victories in the past decade and a half.

Another day. Another revelation about the devastating damage that the FDA tobacco legislation has done to the tobacco control movement and to the protection of the public's health.

It's just a shame that the public is only finding out about this after the fact. It would have been nice if our anti-smoking and health organizations had been honest with us up front. Now it's becoming clear why these groups had to lie to us to get the legislation passed. Telling the truth would have killed the bill. No wonder the Campaign for Tobacco-Free Kids was incapable of honest communication on the bill and needed to resort to a massive campaign of deception.

Wednesday, June 17, 2009

In passing the FDA tobacco legislation, bill supporters have themselves acknowledged that the legislation is a scam and that FDA regulation does not and will not make cigarettes safer.

In the bill itself, supporters have acknowledged that: "If manufacturers state or imply in communications directed to consumers through the media or through a label, labeling, or advertising, that a tobacco product is approved or inspected by the Food and Drug Administration or complies with Food and Drug Administration standards, consumers arelikely to be confused and misled. Depending upon the particular language used and its context, such a statement could result in consumers being misled into believing that the product isendorsed by the Food and Drug Administration for use or in consumers being misled about the harmfulness of the product because of such regulation, inspection, approval, or compliance."

The Rest of the Story

In acknowledging that FDA regulation does not and will not in fact make cigarettes safer, the bill's supporters have revealed to us that this is a scam: on the one hand, we are being told that the FDA is going to take the toxic constituents out of cigarettes. On the other hand, supporters have acknowledged - in the bill itself - that FDA regulatory standards will not create a safer product.

Because of this concern that the public might actually believe the bill's supporters that the regulation of the product by the FDA will make it safer, combined with the fact that the bill's supporters understand that what they are telling the public is untrue, the supporters have snuck a provision into the bill which prohibits the tobacco companies (but not politicians and health groups) from even telling consumers that the FDA regulates tobacco products and that the companies are in compliance with FDA standards.

The bill prohibits tobacco companies from "making any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that ... the product is safe or less harmful by virtue of its regulation or inspection by the Food and Drug Administration or its compliance with regulatory requirements set by the Food and Drug Administration."

The bill's supporters have - above - acknowledged that if manufacturers simply state that they comply with FDA standards, consumers are likely to be misled into believing that the products are safer. Thus, the bill effectively prohibits companies from even telling their consumers that they comply with FDA standards.

On top of being unconstitutional as it violates the free speech rights of these companies by prohibiting the communication of truthful information, this provision exposes the legislation for the scam that it is. The bill's supporters have told their constituents and the American public that the bill will lead to the elimination of toxic constituents from tobacco. Within the fine print of the bill, however, they have admitted that the bill will not lead to a safer cigarette and that if cigarette companies even mention to their customers that they are complying with FDA standards, those consumers will be misled.

Is it not also true, then, that the public health groups supporting this legislation are misleading the public by stating that tobacco companies will be forced to comply with FDA standards?

Over time, the public is going to come to appreciate the scam that this really is. Unfortunately, Congress only entertains federal tobacco policy about once every 30 years, so it is very unlikely that they will soon fix the public health mess that they have created.

Tuesday, June 16, 2009

According to an article in yesterday's New York Times, a constitutional challenge of the FDA tobacco legislation - based on the First Amendment - is almost a certainty. The advertising industry, tobacco companies, and the ACLU have all challenged the constitutionality of the legislation's advertising restrictions, hinted that lawsuits are pending, and predicted that the restrictions will largely be overturned by the Supreme Court.

According to the article: "The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week. ... Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools."

The article points out: "In the 2001 case, the Supreme Court struck down a Massachusetts ban on tobacco ads, including outdoor billboards and signs that could be seen within 1,000 feet of any public playground and elementary or secondary school. That ban, which would have eliminated tobacco advertising in about 89 percent of Boston, is virtually identical to one standard in the new federal law. The Supreme Court found it to be an unconstitutional limit of the First Amendment right to free speech in part because it was simply too broad. The effect 'will vary based on whether a locale is rural, suburban, or urban,' Justice Sandra Day O’Connor wrote for the majority. 'The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.'"

The Rest of the Story

There are two aspects of the legislation that are likely to be challenged on First Amendment grounds. First is the bill's advertising restrictions. Second is the bill's restrictions on truthful information that the tobacco companies are permitted to communicate to their customers.

The bill's advertising restrictions are unlikely to be upheld by the Supreme Court because the Court has already struck down very similar regulations that were issued in Massachusetts. Here, the state imposed a ban on smokeless tobacco advertising within 1000-feet of schools and playgrounds, which is identical to one of the major advertising restrictions in the FDA legislation. The Supreme Court struck down those restrictions, ruling that they violate the First Amendment's protection of free speech rights of the tobacco companies.

As a Congressional Research Service analysis explains the decision: "The Court determined that the regulations restricted speech more than was reasonable to advance the state’s interest in reducing underage (i.e., illegal) use of tobacco products and, thus, failed to meet the fourth part of the Central Hudson test. Banning all outdoor tobacco advertisements within 1,000 feet of a school or playground, in conjunction with other zoning restrictions, argued the Court, “would constitute a nearly complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.” The Court found that the restrictions on outdoor advertising of cigars and smokeless tobacco were overbroad in that they prohibited advertising “in a substantial portion of the major metropolitan areas of Massachusetts,” included oral communications, and imposed burdens on retailers with limited advertising budgets. The Court also upheld challenges by smokeless tobacco and cigar companies to the outdoor advertising restrictions on the grounds that adults have a right to information and the tobacco industry has a right to communicate truthful speech on legal products."

The Campaign for Tobacco-Free Kids and other health groups have been misleading their constituents and the public about the likely effect of the legislation on cigarette advertising, because these groups have not been honest with us about the fact that the bill's advertising restrictions are almost certainly going to be challenged in court and the fact that very similar restrictions were overturned by the Supreme Court in 2001.

When all is said and done, the effect of the legislation's remaining advertising restrictions is likely to be quite minor.

The second aspect of the legislation which will almost certainly be challenged in court is the bill's prohibition on cigarette companies making truthful statements about FDA regulation of tobacco products. The House version of the bill prevents companies from even stating that FDA regulation of tobacco products exists, while the Senate version prevents companies from making any statement that could be implied as suggesting that the FDA approves cigarettes for sale and consumption. In both cases, the constitutionality of the legislation is doubtful because it prevents companies from making truthful statements and therefore is likely in violation of their First Amendment free speech rights.

Jonathan Adler points out the absurdity of this aspect of the legislation: "One fear of tobacco-control activists is that cigarette companies would trumpet FDA approval, giving consumers the impression that cigarettes and other tobacco products are safe — or at least “safer” — now that the FDA is involved. To address this concern, the bill prohibits “any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that the product is approved by the Food and Drug Administration,” or was somehow deemed “safe” by the federal government. So while the FDA will now have the final say over what tobacco products may be on the market, federal law will purport to prohibit companies from saying so, lest consumers be “misled” into believing FDA regulation of tobacco is for their benefit."

Supporters of the FDA legislation are trying to have it both ways. On the one hand, they're trying to argue that cigarettes are going to be made safer by virtue of FDA regulation, thus reducing health risk and saving millions of lives. On the other hand, they don't want cigarette companies to tell the public that the FDA regulates cigarettes because they are afraid that the public might wrongly infer that cigarettes are going to be made safer by virtue of FDA regulation, thus reducing health risk and saving millions of lives.

Saturday, June 13, 2009

It looks like it was lowly me being left to counter President Obama, Representative Waxman, and new FDA-chief Margaret Hamburg in their praise of the FDA tobacco legislation and how it is going to create safer cigarettes, keep tobacco out of the hands of youths, and save lives.

The key thing, however, is that we are succeeding in getting the "rest of the story" out there. Due to our aggressive media outreach this past week (and I am grateful to the communications offices and staff at Boston University and the BU School of Public Health for all of their help), we succeeded in getting our version of the story out there. While it doesn't dominate the media coverage, at least this alternative perspective is presented and considered, and the public is hearing that there is, in fact, another side to the story.

About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.